Judges, child trespassers and occupiers' liability

• Author: Luke Bennett
• Position: Department of the Built Environment, Sheffield Hallam University, Sheffield, UK

1 Introduction

Does an occupier owe any duty to safeguard child trespassers who may come upon his land or structures? This question is easily stated, but has taxed the English courts for over 100 years. This paper considers how the appellate courts have sought to find an answer to this question.

This study forms part of a wider project exploring how various stakeholders (e.g. occupiers, land agents, trespassers and regulators) each construct stable and workable interpretations of what is required of them by this area of law ( Bennett and Crowe, 2008 ; Bennett, 2009 ; Bennett and Gibbeson, 2010 ; Bennett, 2010 ). Each lay “interpretive community” ( Fish, 1980, 1989 ) starts with the same awareness of the broad principles that require that an occupier provide for the reasonable safety of his lawful visitors and something similar to foreseeable trespassers in proximity to foreseeable danger. Each community must then develop and apply its own pragmatic and approximate interpretation of what that means in practical terms for its members.

To support this wider project, this paper seeks to achieve two outcomes. First, to provide a concise summary of the doctrinal evolution of the law in this area. Second, to consider how the appellate judiciary have themselves operated as one such “interpretive community” in developing their own interpretation of how these legal principles should properly be applied in cases before them. This second layer of analysis will draw upon, and seek to empirically illustrate, Bourdieu's (1987) theorising of the operation of the “juridical field”. In each case, the analysis is confined to the “problem” of child trespass to make the task manageable and because child trespass has proved a particularly active and emotive part of this jurisprudence.

This paper's analysis will specifically consider the following questions:

Has there been a neat linear evolution in the law of occupiers' liability as regards child trespassers over the last 100 years? And, if so, has this seen unequivocal “humanisation” of the doctrines, with an ever greater level of duty arising?

What has remained constant within this judicial discourse? In considering the operation of the appellate judiciary as an interpretive community, we need to assess continuities as well as changes.

What does this likely mix of change and constancy tell us about the dynamic interplay of law with wider political, social and economic factors such as anxieties about parenting, safety and change within the built environment?

To achieve its “dual-purpose” analysis, this paper sets out a brief summary of the “trajectory” of this area of law over the last 100 years before then drilling into the specific milestones of this “story” in greater detail. The analysis then considers the cross-cutting themes of “constancy” and “context” which endure or otherwise interact with this jurisprudential narrative.

Before commencing this journey, a few words on methodology are appropriate. The author is a lawyer by profession, but one with a strong sociological orientation. This paper's primary aim is not to discover what the law is now, or was in the past, but rather to use aspects of legal historical and doctrinal analysis in support of a wider consideration of how the evolution of the doctrine has occurred within the juridical field. For Bourdieu, the juridical field is a “social universe” (816) in which law, lawyers and lawyering achieve an enduring discourse within which individual actors both shape, and are shaped by their community of knowledge and practice. But, importantly, the juridical field is not solely inhabited by law and legal principles (such matters comprising the conventional realm of jurisprudence) but instead it is also constantly interacting with social, economic, psychological and linguistic practices within and beyond the field.

This paper is based upon a study of appellate court reported judgments, legal journal articles, law reform reports and wider policy and stakeholder debates. Inevitably, Court of Appeal and House of Lords decisions play a significant part in this source material, and it should be plainly stated, and following Simpson (1996) , that judicial cognition does not only take place within the appellate courts. The law is also interpreted by lawyers advising their clients and by judges in unreported first instance decisions. In these harder to access instances lie the well-trodden path following behaviours that make up the “day-to-day” lived reality of the law (what Bourdieu would style law's “habitus”). However, this paper will show that habitus can also be detected at work within the appellate courts.

2 The story in outline

Text-book accounts of the development of legal principles in English Law concerning occupiers' liability towards child trespassers portray a “humanising” trend over the last 100 years, starting from a “draconian”¹ position “derived from the nineteenth century moral judgment that a trespasser was deserving of his plight” ( Markesinis and Deakin, 1999, p. 327 ). That Victorian jurisprudence is characterised as having “an over-zealous preoccupation with the sanctity of real property rights, even over that of human life” ( OLRC, 1972, pp. 6-7 ). In such accounts, the 1929 House of Lords judgment in Addie² is vilified as symptomatic of this inhumane attitude. In this case, a mine owner was found to owe no duty to a four-year old child trespasser fatally crushed by a spoil conveyor on its site. In finding no rule of liability towards the child their Lordships thus upheld a view that liability (if any) was dependent upon a “technical question of the capacity of the injured: invitee, licensee, trespasser”³.

In 1957, at the recommendation of the Law Review Committee, the principles of occupiers' liability for lawful visitors were codified in the Occupiers Liability Act 1957, removing a differentiation of levels of duty as between various types of invitee and licensee and replacing these with declaration of a “common duty of care” to be owned by occupiers to all lawful visitors. However, the common law was left unaltered as regards the position of trespassers.

In 1972, the House of Lords, in British Railways Board v. Herrington⁴ overruled Addie and, in a spirit of modernisation, and self-declared “humanisation” of the common law, held that circumstances could arise in which an occupier would owe a “duty of humanity”⁵ to a trespasser. However, due to concerns about how the five Law Lords had variously defined that possibility, the Law Commission was asked in 1976 to examine the law and submitted its recommendation for codification of the principles of occupiers' liability to trespassers. In 1984, a modified version of the Law Commission's proposals was enacted, as the Occupiers' Liability Act 1984 setting the current basis for occupier liability towards trespassers.

The aim of this paper is not to fundamentally challenge the accuracy of this “story” but rather to show the relevance of some of the subtleties, continuities and changes that lie beneath the surface.

3 Occupiers' liability at the start of the twentieth century

Prior to Donoghue v. Stevenson (1932)⁶, there was no notion of a singular, generic, duty of care applicable to all circumstances. Duties of care were identified on a case-by-case basis. Therefore, unsurprisingly, the question of whether a duty existed as regards various types of injury suffered by persons visiting premises was regarded as a self-contained area of jurisprudence. In the case of visitors to land, these incidents involved real property and the primary question appeared a property law one of whether an owner should have unfettered entitlement to enjoy his property without interference or duty to others. In this context, contemplation of liability to trespassers was indeed viewed from a “property rights” perspective.

However, the first 20 years of the twentieth century had seen a plethora of appellate decisions in cases concerning injury or deaths to child trespassers, with at least one House of Lords ruling appearing to impose a liability upon occupiers for children known to play on or near industrial machinery (in this case a railway turntable)⁷. Addie was viewed by the judiciary as an opportunity to correct this prior drift away from a clear statement of the law by asserting the common law's principles in unequivocal axiomatic terms, with Lord Hailsham declaring (at 365):

Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger.

And, despite early opportunity to treat this formulation as overruled⁸, Addie came to be regarded as the leading case, the embodiment of the general rule. Accordingly, cases in the inter-war years tended to deny liability finding the cause of danger to be self-evident and thereby something that a trespasser should take “at his own risk”⁹.

4 The move towards “humanisation”

In 1952, the Law Reform Committee (a precursor to the Law Commission) was asked to examine occupiers' liability law, and to propose statutory codification if it considered that appropriate, which it did. However, as regards liability towards trespassers the Committee was satisfied with the existing common law rule, although, as Heuston (1955, p. 271) noted, a minority of the Committee appeared to have favoured a relaxation of...